Transparency advocates decry ‘ludicrous’ ruling

The New York City Police Department has denied a public records request and subsequent appeal for its Freedom of Information handbook.

MuckRock journalist Shawn Musgrave filed a records request under New York’s Freedom of Information Law (FOIL) for the police department’s FOIL handbook, the guide officers use to apply public record law.

However, the NYPD told Musgrave its Freedom of Information handbook is not covered by FOIL, arguing it is protected under attorney-client privilege.

The NYPD said the information in the handbook reflects "confidential communications between members of the FOIL unit and their attorneys in the context of the providing of legal advice concerning the meaning and requirements of the Freedom of Information Law."

Journalists and transparency advocates who have long complained about the NYPD’s culture of secrecy criticized the latest rejection.

"What's ludicrous here is that the NYPD is refusing to be open about its own transparency process itself," Musgrave told the WashingtonFree Beacon. "Even if attorney-client privilege applied here—and I don't believe that it does, not for the department's FOIL handbooks and manuals, at least—department lawyers can absolutely choose to release this basic information. Even the FBI and NSA have released similar documents with minimal redactions."

Robert Freeman, the executive director of the New York State Committee on Open Government, said that, while he has not seen the handbook, the NYPD’s arguments are tenuous at best.

"Legal advice is something that can be accepted, rejected, or modified by the boss," Freeman said. "When it is adopted by the decision maker, it's no longer legal advice, it becomes the policy of the agency. There are any number of circumstances where similar kinds of documents have been made public via FOIL requests."

"Second, assuming that some of the content does not consist solely of legal advice but rather is reflective of police department policy, in my opinion—again—the privileges that were cited would not apply," Freeman continued.

As previously reported, the NYPD is notoriously bad at complying with Freedom of Information requests.

The department has refused to hand over weapons discharge reports to both Musgrave and this reporter on several occasions, despite losing a lawsuit several years ago over the same records.

In another instance, the NYPD released documents to Musgrave, but they were so blurry as to be unreadable.

The NYPD even rejects routine records requests that transparency advocates say are clearly covered under FOIL.

Before being elected New York City mayor, Bill de Blasio was an outspoken critic of the NYPD’s lack of transparency. As the city’s public advocate, de Blasio released a report finding that one-third of all public records requests to the department were ignored.

The new NYPD commissioner, Bill Bratton, announced that he aims to improve transparency at the department.

"There should be no secrets in the NYPD," Bratton told the Citizens Crime Commission in February. "We are going to do more to open up the organization, to make it more inclusive, to make our information more readily available to the public, and to try and format it in a way that is more easily retrievable."

Freeman said Bratton’s promise to release more crime data was heartening.

"My hope is that the door will be open wider," he said.

The NYPD and Mayor de Blasio’s office did not immediately respond to requests for comment.

CJ CiaramellaEmail CJ | Full Bio | RSSCJ Ciaramella is a staff writer for the Washington Free Beacon. Prior to joining the Beacon, he was a reporter for the Daily Caller. He was also a Collegiate Network year-long fellow at the San Diego Union-Tribune and has written articles for the Weekly Standard and Oregon Quarterly. Ciaramella attended the University of Oregon, where he edited the award-winning student magazine, the Oregon Commentator. He lives in Washington, D.C. His Twitter handle is @cjciaramella. His email address is ciaramella@freebeacon.com.